Summary

Facts

The respondent (J) had been the applicant’s (M’s) doctor. After an incident at J’s surgery, M sued J for damages for assault. During the proceedings, both parties were required to give disclosure. J sent a copy of M’s medical records to his solicitors for advice on whether they should be disclosed. M began a further action in respect of that disclosure, alleging breach of the Data Protection Act 1998, the Access to Health Records Act 1990, and the law of confidence. J was granted summary judgment. M sought permission to appeal.

Issue

Whether there was any real prospect of successfully showing the disclosure to have been unlawful under:
(1) the Data Protection Act 1998;
(2) the Access to Health Records Act 1990;
(3) the general law of confidence.

Held

Dismissing the application, there was no real prospect of any appeal succeeding, and no other reason why permission to appeal should be given.
(1) The disclosure had been necessary for the purpose of and made in connection with legal proceedings within the meaning of s.35(2) of the Data Protection Act 1998. J needed legal advice on the extent of his obligation of disclosure.
(2) The Access to Health Records Act 1990 did not impose on J any obligation to obtain a court order before sending M’s health records to his solicitor.
(3) The law of confidence did not preclude J from seeking legal advice in respect of his obligation of disclosure. The obligation of disclosure may override the obligation of confidentiality and here both law and common sense required that a doctor disclose to his solicitor confidential material that might be relevant, for advice as to the proper course to be taken.

Comment

This was a straightforward case involving plainly legitimate disclosure to legal advisers, but this brief judgment is still interesting for its analysis of the legal proceedings exemption in the Data Protection Act. ‘Necessary’ in s.35(2) is given an interpretation sufficiently generous to protect virtually all disclosure to lawyers in the course of proceedings. Also of interest is Lightman J’s comment that s.35(2) reflects the common law, so that it will not make any difference whether a claim is brought in confidence at common law or under the 1998 Act. It is interesting to compare the position in defamation, where it is clear that such communications are privileged, but remains unclear whether the privilege is absolute or qualified: see Gatley on Libel & Slander 10th ed at 13.50.

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